# Petition — BLACK v. OHIO (No. 76-6547)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976

## Text

76- 6547).

OCTOBER TERM, 1976 [ RECEIVED

APR 1 3 1977

OFFICE OF THE CLERK
SUPREME COURT, U.S.

wo. “[1,-lLS +7

JESSE BLACK, Petitioner

-VEee-

STATE OF OHIO, Respondent

The Ohio State University
College ef Law

1659 North High Street
Columbus, Ohio 43210
(614)422-6821

DENNIS N. BALSKE
Clinical Programs

The Ohio State University
College of Law

1659 North High Street
Columbus, Ohio 43210
(614) 423-6821

CHRIS BLAIR

Ohio Public Defenders Association
8 E. Long Street, Room 519
Columbus, Ohio 43215

COUNSEL FOR PETITIONER

.

TABLE OF CONTENTS

I. OPINIONS BELOW. . 2.1. 2+ e+e eee se eeves 1
II. JURISDICTION . . 1. 26 ss ee es eo we we we we oes 1
ITI .QUESTIONS PRESENTED... +++ ++ eee @ » 2
IV. CONSTITUTIONAL AND STATUTORY PROVISIONS .. . 3
V. STATEMENT OF THE CASE ....++ ++ e+e © @ 3
VI. REASONS FOR GRANTING THE WRiT .... +++ > 13

A. UNDER ANY OF THE CURRENT STANDARDS FOR
DETERMINING EFFECTIVE ASSISTANCE OF COUNSEL
IN A CRIMINAL CASE, A TRIAL ATTORNEY DEPRIVES
HIS CLIENT OF HIS $IXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHERE (1)
ADMITS HIS CLIENT'S GUILT DURING 0
STATEMENT AND CLOSING ARGUMENT (2) INTRODUCES
HIS CLIENT'S PRIOR FELONY RECORD
EVIDENCE AT THE CONCLUSION OF THE TRIAL,

EVEN THOUGH THE RECORD WAS INADMISSIBLE AS

THE CLIENT DID NOT TESTIFY (3) FAILS TO
RECOGNIZE A FOURTH — VIOLATION WHICH
COULD HAVE BARRED THE ADMISSION OF HIS
CLIENT'S CONFFSSIONS 4) FAILS TO OBJECT

TO PREJUDICIAL a IBLE HEARSAY AND
OPINION TESTIMONY OF PROSECUTION WITNESSES
(5) BRINGS OUT PREVIOUSLY UNRELATED AND
EXTREMELY DAMAGING EVIDENCE DURING CROSS-
EXAMINATION OF PROSECUTION WITNESSES (6)
NEVER HAS HIS CLIENT EVALUATED BY A E
EXPERT TO DETERMINE HIS COMPETENCY TO STAND
TRIAL, SANITY OR, FOR THE PRESENCE OF A
STATUTORY MITIGATING FACTOR WHICH WOULD HAVE
PRECLUDED THE DEATH PENALTY, THOUGH THE CLIENT
HAD BEEN DETERMINED TO BE MENTALLY DEFICIENT
BY A COURT-APPOINTED PSYCHIATRIST, AND (7
DEMONSTRATES A GENERAL UNAWARENESS OF L,
TRIAL AND POST-TRIAL PROCEDURES GOVERNING TRIAL
OF CRIMINAL CASES IN OHIO. ........+-. 13

B. OHIO REVISED CODE SECTIONS 2929.03(E) AND
2929.04(B) VIOLATE DUE PROCESS OF LAW UNDER THE
AMENDMENT TO THE UNITED STATES
CONSTITUTION BY PLACING ON THE DEFENDANT THE
BURDEN OF PROVING BY A PREPONDERANCE OF THE
EVIDENCE THAT HE SHOULD NOT BE EXECUTED, . . 20

C. OHIO'S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL,
CONSIDERING THE ILLUSORY NATURE OF SOME OF THE
SPECIFIED MITIGATING FACTORS, THE NARROW SCOPE
OF WHAT REMAINS AND THE IRRELEVANCE OF NON-
SPECIFIED FACTORS AND THE FACT THAT OHIO DOES
NOT HAVE A SYSTEM OF APPELLATE REVIEW OF ALL
DEATH SENTENCES WHICH INCLUDES A COMPARISON
OF CASE BY CASE FACTS TO INSURE THAT A DEATH
SENTENCE IN A PARTICULAR CASE IS WARRANTED. . 22

D. THE STATE HAS NOT ESTABLISHED ITS BURDEN OF
PROVING A VOLUNTARY, KNOWING AND INTELLIGENT
WAIVER BY THE DEFENDANT OF HIS FIFTH, SIXTH,
AND FOURTEENTH AMENDMENT RIGHTS, PRIOR TO
SECURING A CONFESSION, IN LIGHT OF NUMEROUS
ARRESTS, LENGTHY INTERROGATIONS, PERSISTENT
REFUSALS BY THE DEFENDANT TO SIGN A RIGHTS
WAIVER FORM OR MAKE A STATEMENT, AND THE
DENIAL OF DEFENDANT'S REQUEST TO SPEAK WITH
| 9. sai eee ae ee ee ee 25

i

—— -

TABLE OF CONTENTS (continued)

VII - CONCLUSION . . . . . . . . . . . . . . . > . .

Appendix:
Judgment and Sentence of Court of Common

A.

Pleas, Richland County, Ohio

inion of the Court of Appeals of

hland County, Ohio... .

Opinion of the Ohio Supreme Court ....
Order of Ohio Supreme Court Denying a
Rehearing

Order of Ohio Supreme Court Staying
Execution . 7 . . . . . . . . . . . . . +

Ohio Statutory Provisions. ...

ii

Cases
Avery v. Alabama, 308 U.S. 444 (1940) ........ 15

pean) United States, 491 F.2d 687 (6th Cir.

. . . . . * . . . . * . * . . . . . . . . 14

Blackburn v. Alabama, 361 U.S. 199 (1960) ...... 26
Brewer v. Williams, 20 Cr. L. 3095 (1977) ...... 27, 28

Brookhart v. Janis, 384 U.S. 1 (1966) ........ 27
Brown v. Beto, 377 F.2d 950 (5th Cir. 1967) ..... 14

Brown v. Illinois, 422 U.S. 590 (1975) ....... 16
les v. Peyton, 389 F.2d 224 (4th Cir. 1968)... . 14

Diggs v. ch, 148 F.2d 667 (D.C. Cir.), cert. den.
325 US a9 (1945) = erie age *)» Sere ea

Drope v. Missouri, 420 U.S. 162 (1975) ....... 18
Escobedo v. Illinois, 378 U.S. 478 (1964) .... . . 26,27
Green v. Rundle, 434 F.2d 1112 (3rd Cir. 1970)... 14

Gregg v. Georgia, 96 S.Ct. 2909 (1976) ....... 24
Jackson arden, Nevada State Prison, 537 P.2d

coe eo eee ee ero e ese o es 1b

Johnson v. Zerbst, 304 U.S. 458 (1938) ....... 28
Jones v. Huff, 152 F.2d 14 (D.C, Cir, 1945) ..... 14
Jones v. Smyth, 176 F.Supp. 949 (E.D.Va. 1959)... 15
Jurek v. Texas, 96 S.Ct. 2950 (1976) ........ 25
ce v. Overlade, 244 F.2d 108 (7th Cir. 1957) . . . 14

Massiah v. United States, 377 U.S. 201 (1964) . ... 27
Matthews ¥ ted States, 449 F.2d 985 (D.C.
Ze

. . . . . . . . . 7 . . . . . . . . 7. 15

McKenna v. Ellis, 280 F.2d 592 (Sth Cir. 1960)... 14
McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) . . 14

Michigan v. Mosley, 423 U.S. 96 (1975) ....... 26
Miranda v. Arizona, 384 U.S. 436 (1966) . .... + » 26,27,28

Moore ¥. United States, 432 F.2d 730 (3rd Cir.

97 . . + . . . . . . . . . . . . . . . . * 7 14
Mullaney v. Wilbur, 421 U.S. 684 (1975) ...... 20,21,22
Nardone v. United States, 308 U.S. 338 (1939) .... 16

People v. Blevins, 251 Ill. 381, 96 N.E.2d 4 (1911) . 16,17
People v. Nitti, 312 I11. 73, 143 N.E.448 (1924) .. 17

iii

TABLE OF AUTHORITIES (continued)

Page

People vy: 34 Cal. App.3d 370, 108
1 . (1973) . . . . . . . . > ° . . 31

Proffitt v. enti, 96 $.Ct. 2967 (1976) ..... 25

Roberts v. Louisiana, 9 S.Ct. 3001 (1976) ..... 23
Schneckloth v. Bustamonte, $12 U.S. 218 (1973)... 26
State v. Bayless, 48 Ohio St.2d 73 (1976). .... 24
tate v. Rell, 48 Ohio St.2d 270 (1976) ...... 24

tate v. Harper, 57 Wis. 2d 543, 205 N.W.2d (1973) . 14

tate v. He o ome St.2d 71, 341 N.E.2d 304
(197 >. . >. . >. >. . >. >. . > . >. 7. . 7 7: 14
State vy. e, 192 Neb. 485, _ BoM. 2d .

State v. Lockett, 49 Ohio st.2d 48 (1977) ..... 15
State v. Staten, 18 Ohio st.2d 13 (1969) ...... 23
State v. Thomas, 203 S.E.2d 445 (W.Va. 1974)... . 14
tate v. Woods, 48 Ohio St.2d 127 (1976) ..... + 24,25
oley v. Rose, 507 F.2d 414 (6th Cir. 1974).... 19

United States " DeCoster, 487 F.2d 1197 (D.C.
Be

° . . . . 7 . > . o . . . . . . + . . 14

ited States v. DeCoster II, 20 Cr. L. 2080 (1976) . 14

ited v. Elkanis, 528 F.2d 236 (9th Cir. P
Washington v. Texas, 388 U.S. 14 (1967) ....+.+-+ 19

Weeks v. United states, 232 U.S. 385 (1914) .... 16
Whitely v. Warden, 401 U.S. 560 (1971) .....-s 16

In re Winship, 397 U.S. 358 (1970) .....+.+. +. 20,21,22

Wong Sun v. United States, 371 U.S. 471 (1963)... 16
Woodson v. North Carolina, 428 U.S. 280 (1976) .. . 22,23

Statutes
Ohio Revised Code, Section 2929.03(E) .....++-+ + 20
Ohio Revised Code, Section 2929.04(B) .... +++ + 20,22,24
Ohio Revised Code, Section 2929.04(A) . . « « + . &
Other Authorities

oe eo

iv

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

JESSE BLACK, Petitioner
-Vs-

STATE OF OHIO, Respondent

—_—

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO

Petitioner prays that a writ of certiorari issue to review
the judgment of the Supreme Court of Ohio, entered in the above-
entitled case on January 14, 1977.

I. OPINIONS BELOW
The judgment and sentence of the Court of Common Pleas of

Richland County, Ohio is not reported. A copy is attached as
Appendix A.

The opinion of the Court of Appeals of Richland County,
Ohio aleo is not reported. A copy is attached as Appendix B.

The opinion of the Supreme Court of Ohio, State v. Black,
48 Ohio St.2d 262, 358 N.E.2d 551 (1976), is attached as
Appendix C, The judgment and order of the Supreme Court of
Ohio, dated January 14, 1977, is attached as Appendix D.

II. JURISDICTION
The date of the judgment of the Supreme Court of Ohio,

which this petition seeks to have reversed, is January 14,
1977 (Appendix D).

This Court has jurisdiction to review the judgment of the
Supreme Court of Ohio pursuant to 28 U.S.C. §1257(3).

Cc.

FOR THE PRESENCE Of A STATUTORY MITIGATING FACTOR WHICH
WOULD HAVE PRECLUDED THE DEATH PENALTY, THOUGH THE CLIENT
HAD BEEN DETERMINED TO BE MENTALLY DEFICIENT BY A COURT-
APPOINTED PSYCHIATRIST, AND (7) DEMONSTRATES A GENERAL
UNAWARENESS OF PRETRIAL, TRIAL AND POST-TRIAL PROCEDURES
GOVERNING TRIAL OF CRIMINAL CASES IN OHIO?

WHETHER OHIO REVISED CODE SECTIONS 2929.03 (E) AND
2929.04(B) VIOLATE DUE PROCESS OF LAW UNDER THE FOUR-
TEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY
PLACING ON THE DEFENDANT THE BURDEN OF PROVING BY A
PREPONDERANCE OF THE EVIDENCE THAT HE SHOULD NOT BE

WHETHER OHIO'S DEATH PENALTY SCHEME IS CONSTITUTIONAL
CONSIDERING THE ILLUSORY NATURE OF SOME OF THE SPECIFIED

WHETHER THE STATE HAS ESTABLISHED ITS BURDEN OF PROVING
A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER BY THE

DEFENDANT OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT
RIGHTS, PRIOR TO SECURING A CONFESSION IN LIGHT OF
NUMEROUS ARRESTS

IV. CONSTITUTIONAL AND STATUTORY PROVISIONS
A. This case involves the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution.
B. This case also involves the following provisions of
Ohio law, the text of which is set forth verbatim in Appendix
E:
(1) Ohio Revised Code, Section 2903.01 Aggravated
Murder; Title 29, Page's Ohio Revised Code, Page 15.
(2) Ohio Revised Code, Section 2903.02 Murder;
Title 29, Page's Ohio Revised Code, Page 20.
(3) Ohio Revised Code, Section 2903.03 Voluntary
Manslaughter; Title 29, Page's Ohio Revised Code, Page 23.
(4) Ohio Revised Code, Section 2903.04 Involuntary
Manslaughter; Title 29 Page's Ohio Revised Code, Page 23.
(5) Ohio Revised Code, Section 2923.03 Complicity;
Title 29, Page's Ohio Revised Code, Page 134.
(6) Ohio Revised Code, Section 2929.02 Penalties
For Murder; Title 29, Page's Ohio Revised Code, Page 152.
(7) Ohio Revised Code, Section 2929.03 Imposing
° Sentence For A Capital Offense; Title 29, Page's Ohio
Revised Code, Page 153.
(8) Ohio Revised Code, Section 2929.04 Criteria
For Imposing Death or Imprisonment for A Capital Offense;
Title 29, Page's Ohio Revised Code, Page 154.

V. STA THE E

Petitioner, Jesse Black, was tried in the Common Pleas
Court of Richland County and found guilty of two counts of
aggravated murder in May of 1974. On July 8, 1974 petitioner,
a mentally retarded black, with an IQ of 68, was sentenced to
death.

A. The Numerous Arrests and Interrogations

Petitioner's conviction stemmed from the January 21,

1974 shootings of Olga Laderman and Robert Staples. The Lader-
man shooting occurred at approximately 4:00 P.M. at the Bel-Aire
Motel, and the Staples shooting occurred at approximately 6P.M.
at the Staples Beer Dock, both in Richland County, Ohio.

e$Z-«

Petitioner, Jesse Black, was arrested on January 22, 1974
as a result of the "stake-out" of a red Mercury Cougar auto-
mobile, owned by luis girlfriend and tied to the shootings by
statements of witnesses as well as by an anonymous phone call .
te the police. This arrest took place at 8:13 A.M. (Mot. 104)~
After arresting officers cenducted a search of the automobile,
Jesse was taken to police headquarters (Tr. #1, 106).

Petitioner was held in custody until 5:30 P.M. on January
22 (Mot. 106). During this time period Jesse appeared in a
lineup, at approximately 11:00 A.M. (Mot. 52; Tr. #2, 439) and
a shoe showup (Mot. 53, Tr. #2, 443), took a polygraph test,
at 4:13 P.M. (Mot. 55; Tr. #2, 444), and underwent three hours
and twenty minutes of questioning, from 1:20 to 4:40 P.M.

(Tr. #2, 487). No identification of the petitioner was made
(Mot. 52, 54; Tr. #2, 442-3), and petitioner denied involvement
in both shootings (Tr. #2, 487). Jesse was also fingerprinted
and photographed during his approximately nine and one half
hours in custody (Tr. #2, 446).

Jesse was arrested for the second time on January 28, 1974
at 6:14 P.M. (Mot. 106). This time he was held and interrogated
for almost two days, his release not coming until January 30 at
9:20 A.M. (Mot. 106). Police questioned him intermittently
during this period with respect to the two shootings (Mot.
117-8). One such interrogation took place from approximately
9:00 to 11:00 P.M. on January 28, during which time petitioner
refused to sign a rights waiver card and continually stated
"no comment on advice of attorney" (Mot. 61; Tr. #2, 450).
Additionally, petitioner informed police officials of the
identity of his attorney at this time (Mot. 61).

Petitioner was arrested for the third time on January 31,
1977 at approximately 11:00 P.M. for reckless operation of a
motor vehicle (Mot. 118). His attorney went to the police
station, and petitioner was released shortly thereafter (Mot.

118). His atterney was given a court appearance date of

1/ The transcript of this case consists of five volumes, as
follows: Motion to eer hereinafter Mot.; Voir Dire,
hereinafter V.; Trial (2 volumes), hereinafter Tr. #1,2;
and Mitigation Hearing, hereinafter Mitig.

=F =”

February 5, of which he neglected to advise Jesse (Mot. 119).
Having not been advised of the date for his court appearance,
neither Jesse nor his counsel appeared on February 5. Consequen-
tly, a bench warrant for Jesse's arrest was issued on February

5 (Mot. 119). on February 6 petitioner appeared in court with
counsel, and the bench warrant was set aside (Mot. 119; Mot.
Defense Exhibit #1).

Pursuant to the February 5 bench warrant, which had been
set aside on February 6, police arrested Jesse for the fourth
time on February 11, 1977 at 10:12 A.M. (Mot. 106). During the
course of this arrest police officers discovered a roach
(cigarette butt of marijuane) in petitioner's coat pocket and
subsequently charged him with possession of marijuana (Mot. 120).

Twelve minutes later, at 10:24 A.M., police officers began
interrogating Jesse about the January 21 shootings (Mot. 37).
The interrogating officer, Charles Hriesik, read the petitioner
his rights from a card, but he refused to sign the waiver portion
of the card and refused to make any statement about either
shooting (Mot. 37). After one and a half hours ef questioning,
petitioner was taken from the lineup room to a cell. (Mot. 39).

Less than two hours later, at 1:45 P.M., the same officer,
Hriesik, had petitioner brought back from his cell to the lineup
room for further questioning (Mot. 39). After being advised of
his rights, Jesse again refused to sign a rights waiver and
refused to make a statement (Mot. 39, 62, 75). Upon request he
was permitted to phone a friend, his attorney and his father,
but was unable to reach any of them (Mot. 40, 63). More
specifically, he could not reach any of these people, but did
reach his lawyer's office, as epposed to his lawyer himself,
and he continued to refuse to give any statement to the police
(Mot. 82).

Having had no success obtaining a statement from
petitioner on February 11, investigating officers resumed
questioning on the morning of February 12 at 8:15 A.M. (Mot. 4).
Two officers questioned Jesse until 8:40 A.M., during which time
he again refused to sign a rights waiver and refused to make a
statement (Mot. 5-6, 21-2; Tr. #2, 485). According to one of

= 2

we O-s3Cers, Jesse might heve asked to contact his lawer and
might have stated that his lawyer tulad Dim tu mete Ww siucy
ment during the course of this interrogation (Mot. 22-3).

Having not again succeeded in attempting to obtain a right:
waiver from Jesse, police next brought in one of his friends,
Jimmie Eatmon, to confront him with what Eatmon knew of Jesse's
involvement in the shootings (Mot. 7, 41). Eatmon, however,
himself refused to make a statement and asked to call his
attorney (Mot. 8, 41; Tr. #2, 424). -Eatmon left this small
interview room to phone his attorney. Shortly thereafter,
Eatmon returned to this small interview room and told Jesse
that he had told police what he knew about the shootings and
would testify to what he knew in court (Mot. 28, 41). As with
the earlier requests of the police that he waive his rights and
make a statement, petitioner made no statement in response to the
remarks of Eatmon (Mot. 29, 42). Jesse was thereupon returned
to his cell, at approximately 9:15 A.M. (Mot. 29, 42).

At 10:15 A.M. these same two officers, Butler and Hriesik,
once again removed petitioner from his cell (Mot. 8, 30, 42;
Tr. #2, 425) and took him to the lineup room. Instead of
advising him of his rights, as the police had done so many
times previously, Officer Hriesik simply asked Jesse if he
understood his rights (Mot. 8, 30, 42; Tr. #2, 425). Jesse
said that he did. Hriesik then advised petitioner that "he
should straighten this matter out" (Mot. 8, 30, 42; Tr. #2,
425-6). In response to Hriesik's invitation, unaccompanied
by Miranda warnings or request to waive his rights, Jesse
asked to talk to his father, his girlfriend and his attorney
(Mot. 30). The officers did not permit him to phone his
attorney, and on the heels of this refusal, Jesse admitted
involvement in the shootings (Mot. 30, 42). Specifically,
Officer Butler testified to the following scenario:

Q. Now then in your presence Jesse was
advised he should straighten this
matter out. That would be something

oy ye said to him?
He immediately said before he said
anything he wanted to talk to his

father and _ friend is that correct
on page two

o>

- 6 «-

Yes, that is what he said.

Now was he petmitted at that time to
call his father or his girlfriend?
No not at that very moment.

- Did he mention he wanted to talk to
his lawyer?

I believe he did yes sir.

Was he permitted to contact his
lawyer at that time?

At that time.

_— would be myself.

POF OF DP OP

(Mot. 30)
After petitioner made incriminating admissions, to the

effect that he had accidentally shot Olga Laderman when she
grabbed his gun and had driven Eatmon to the beer dock where
Eatmon shot Robert Staples (Mot. 9), Hriesik asked him if he
would repeat the same story to Major O'Neil (Mot. 31, 42; Tr.
#2, 426). Jesse said he would, and Major O'Neil was brought
to the interrogation room (Mot. 10, 31, 42). At 10:20 A.M.,
the Major advised Officer Butler to read Jesse a rights card,
which he did (Mot. 31, 43; Tr. #2, 426-7). Jesse again
refused to sign the rights waiver portion of the rights card,
but repeated the same incriminating admissions to Major O'Neil
(Mot. 10-12, 31, 43-4; Tr. #2, 427-8).

Having told the police that he had held the gun when it
fired and killed Olga Laderman, Jesse, at the request of
Officer Hriesik, assented to a second confrontation with
Eatmon (Mot. 32-3, 45). At this second confrontation,
petitioner asserted that Eatmon had driven him to the Bel-Air
Motel, where the Laderman shooting occurred, and that he had
driven Eatmon to the beer dock, where Eatmon shot and robbed
Robert Staples (Mot. 14, 45-6; Tr. #2, 431-2).

Shortly thereafter, at 11:10 A.M. on February 12, 1977,
more than 24 hours after his arrest on the invalid bench
warrant and incidental marijuana charge, petitioner was taken
to court for the setting of bond on the marijuana charge
(Mot. 26, 46; Tr. #2, 461). Bond was originally set at
$1,000.00, but shortly thereafter was raised to $5,000.00
(Mot. 26). Upon his return to the jail, Jesse was visited by
his father, whom he told that he had confessed just to get the
police off his back (Mot. 47; Tr. #2, 433, 462).

= a

The next day, February 13, 1974, at approximately 4:05 P.M.,
police took petitioner to Major O'Neil's office for further
questioning (Mot. 75). Four officers, O'Neil, Goldsmith,
Hriesik and Kraus, were present (Mot. 64; 75-6; Tr. #2, 490,533).
At this time Jesse was advised of his rights, and he signed
a written waiver thereof (Mot. 76-7; Tr. #2, 490-1, 534).
Beginning at 4:55 P.M., these officers questioned Jesse about
the Laderman shooting (Mot. 64a, 88), and Officer Hriesik typed
all the questions and answers (Mot. 78; Tr. #2, 434). This
statement was completed at approximately 6 P.M. (Mot. 64a; Tr.#2,
495), at which time petitioner read and signed it (Mot. 78; Tr.
#2, 495). Jesse admitted in this statement that Re was holding
a gun on Olga Laderman, when she grabbed the gun and it went
off (Tr. #2, 493).

A second statement, regarding the Staples shooting, was
taken and typed from approximately 6:15 to 7:50 P.M. (Mot. 70,
79; Tr. #2, 495). Jesse read and signed this statement, in
which he admitted that he drove Eatmon to the beer dock, where-
upon Eatmon shot and robbed Robert Staples (Mot. 80; Tr. #2,
496).

As with the previous questioning sessions, the police
admitted they knew petiti-ner was represented by a particular
attorney before they quest . . DBD F fA
uw

I hand you what has been marked for purpose
of identification State's exhibit 2 and ask
if you can identify that?

Yes this is the Rights card which was read
to him at that time by Officer Butler.

This is at what time?

10:20 a.m. They got 1020 hours on here
it was 10:20 in the morning.

Who read that?

Patrolman Marcus Butler.

Were you present when he read it?
Yes.

All right. After the Rights card was
completed what if anything was said or done?

He also then told Major O'Neil that he knew
about it he shot the woman but not the one
down on East Second Street. Then Major
O'Neil at that time asked why, he stated

he said the woman she grabbed the gun. Major
O'Neil asked who was driving the car. He
said Jimmie Eatmon was driving the car, at the
motel Jimmie stayed in the car while Jesse
went in and robbed and shot the woman. Major
O'Neil asked whose automobile they were
using. He stated Jimmie Eatmon had borrowed
it from someone he didn't know who. He

said it was a blue automobile.

Page 44

Q. 1
A.

Did he say anything else about the car?

At that time he thought it belonged to Jimmie
Eatmon or borrowed by Jimmie Eatmon from
somebody else. Jimmie was driving the car.
Then he said Jimmie Eatmon was the person
that shot the man down on East Second Street.

Se

18a

2 Did he sav anything else at this time?
Then he stated he wanted to talk to his
father and also his girlfriend. Again
he demands to be brought back face to

face with Jimmie Eatmon again and he
would give his statement. "

The warning card ( State's Exhibit 2 ) used in this
interview was signed by Jesse Black on the line under the
large word "NAME" in the upper left hand corner on the
warning side of the card but Black refused to sign the waiver
( M.R. 10 ).

Lt. Hriesk also testified that Black's father came
to the police station after the second interview on February

12, and Black told his father that "he (Jesse Black) had
told us he had done it just to get us off his back" ( M.R. 47).

THE SECOND JESSE BLACK-JIMMIE EATMON CONFRONTATION ON
FEBRUARY 12, 1974.

Lt. Hriesk testified about a second Black-Eatmon
confrontation on February 12, 1974, that occurred after the
second questioning which had produced the first oral admission
by Black. Lt. Hriesk asked Black if he wished for another
face-to-face meeting with Eatmon. Black agreed. When con-
fronting Eatmon, Hriesk testified that Black stated:

Motion to Suppress Hearing.
Answer #1, page 45 thru Answer #3, page 46.

Page 45

At this time Jesse said I am tired of lying(sic)
for both of us. Jesse acted like he was mad
at this time he said Eatmon was driving the
car at the motel at Ontario, he went inside
and rob the woman and shot her. Also he

190 °°”

sk Ditte hietamo whee cam le had at that

thine caneb te sceiel Gt was bduae and wanted

to know who it) belonmved to and Jimmie

Katmon had borrowed it from somebody
at Beulah Fayv's on Bowman Then Jimmie |
Katmon interrupted and said he knew several
fellows at Beulah Fay's that had borrowed

the automobile and one person's name was

Grandview or somethiny, similar, he did't

know his name but he was out alt Beulah
Fay's all the time. Jesse told Jimmie
had cased the motel that morning the day
of the shooting in Ontario. While casing
the motel Jimmic talked to the woman about
. room rates, told her he didn't have an
money, he would get money and come back.
Jimmie denied knowledge of the robbery and
shooting or beiny, at the motel.
At that time Jesse told how they drove
down to the beer dock on East Second Street
parked near the Rib House.

Page 46_
> § Where is the Rib House?

A. Down around Second and Hedges. He didn't
give the number at that time I knew where
it was. He cla ms he got out and walked
around to the rear of the drive through
beer doct (sic). Jimmie Eatmon drove
and got in the driver seat and drove the
red Cougar inside the beer dock.

Q. 2 Did he say anything else about the red
Cougar whose it was?

A. Not at that time. He said Eatmon shot and
robbed Mr. Staples and pick him up at the
rear of the building. Jesse also said the
weapon used in both of these matters belonged
to Jimmie Eatmon. Eatmon denied any know-
ledpye of any weapon and shooting Jesse was
talking about. And Jimmie again told Jesse
he told the police what he knew about the
the matter and ne would tell it in court.

20a

0. 3 What happened then?

A. It was about this time Jesse asked Jimmie
how much money did you get. Jimmie said
what are you talking about and Jimmie
denied any part in the robbery again.

Then Jesse dian't want to say anything more
until he talked to his father and he was
returned to his cell.”

THE FEBRUARY 13, 1974, INTERVIEW RESULTING IN THE

WRITTEN CONFESSION.

On February 13, 1974, Black was again questioned.

Present were Captain Krause of the Ontario Police Department,
Major O'Neil, Captain Groscost and Lt. Hriesk of the Mansfield
Police Department. At the outset, Major O'Neil advised Black
that he was charged with agyravated murder and could get either
life or death and then asked if he wanted to make a statement

( M.R. 76). Black answered affirmatively and was then advised
of his rights from State's Exhibit 5, another Miranda warning
and waiver card. Black signed the card on both the warning

and waiver side and placed his initials on the warning side of
the card five times ( M.R. 76, 77 ). After the signing, Major
O'Neil asked Black about beth shootings. Two separate state-
ments were then taken. The first statement ( Exhibit "A" ) con-
sisted of questions and answers covering the Ontario shooting.

The second statement, ( Exhibit "B" ) also consisting of

oft.

2la

questions and answers, covered the Mansfield beer dock
slaying. Black initialed and signed both confessions.

BLACK'S POST CONFESSION ADMISSIONS ON FEBRUARY 13, 1974.

After the written confessions were completed, Black
talked to his sister, his father, and his girlfriend, June
Smith, and Reverend Griffith, at the jail. Lt. Hriesk
testified to the content of Black's conversations with his
father, girlfriend, and sister. Black told his father that
“the woman grabbed his gun and the gun went off and it was
an accident". ( M.R. 48 ). Black was unable to explain in
response to his father's question why he had done it. Black
told June Smith, his girlfriend, in Lt. Hriesk's words, that
"he told us the truth". Black told his sister that he told
the truth and that he robbed the lady, she grabbed the gun
and it went off. The sistexs then admonished Black saying,
“you are trying to hang yourself".

BLACK'S TESTIMONY

Black testified in support of his motion to suppress.
He claimed that he had been subjected to constant day and
night questioning during the three day period of February 11
to February 13, 1974, that he had not been permitted to
change his clothes or to eat, and had only had eight hours
of sleep during the three day period. He claimed that one

of his attempts to call Mr. Davis, his lawyer, was rejected

ol Pe

22a

by Major O'Neil who told him that “you (Mr. Davis) had to
drop my case”.

Thus we consider whether the evidence presented at the
suppression hearing supports the trial court's determination
that the dictates of the Miranda Rule were followed and that
the oral and written statements were voluntary.

THE MIRANDA ISSUE

A. THE WARNINGS

We turn first to a consideration of the Miranda
issue. The prosecutor established that Black was repeatedly
warned during the various interrogations on February 11, 12
and 13, 1974. The written and signed confessions included a
Miranda warning. We find ample testimony and proof to
establish the fact of the Miranda warning throughout the
questioning process.

A careful examination of the commencement of the
second questioning on February 12th is appropriate as it pro-
duced the first damaging admissions. Lt. Hriesk testified
that the complete Miranda rate was not administered until

after the first admission.

-18-

2. See Hriesk's testimony beginning at page 11 of this opinion.

23a

First one could argue that Black's first admission
in response to Lt. es suggestion that "Black straighten
the matter out" was "volunteered" and thus not the result
of exstediol interrogation negating the application of Miranda.
See Haire v. Sarver, 437 Fed. 2d. 12842, Cert. Denied, 404
U.S. 910. We think not. Under all the circumstances, we
construe Lt. Hriesk's suggestion to be a continuation of the
custodial interrogation. However, we find Black's response,
upon entering the lineup room, that he understood his rights
following two Miranda warnings administered on the previous
day and a warning just two hours earlier on the same day in
question, to be sufficient to establish compliance with the
warning requirement of Miranda prior to Black's first admissions.

B. THE WAIVER

Counsel for the defendant contends that the defendant's
refusal to sign the "waiver" portion of the Miranda warning
introduced as exhibits at the suppression hearing, ( state's
exhibits 1 through 4 ) negate the Miranda waiver. If we assume
arguendo that the defendant's persistent refusal to sign the
waiver portion of the Miranda warning card was in fact a
declaration that he would not waive the rights contained in the
warning, does such declaration invalidate a subsequent waiver.
We think not. A valid waiver of the rights contained in the

Miranda warning may be either expressed or implied.

-19-

24a

The defendant's answers to questions put to him
after repeated Miranda warnings may be sufficient to imply
a waiver of the "Miranda rights’ notwithstanding his re-
fusal or failure to sign a "waiver" portion of a Miranda
card and in the absence of an express declaration of waiver.
In determining whether to so imply a waiver, the court may
consider the surrounding circumstances. In the instant case,
we find that Black's decision to respond affirmatively
to Lt. Hriesk's initial suggestion that he "clear up matters”
and the recently completed confrontation with Eatmon are
sufficient surrounding circumstances to justify a trial
court's finding of waiver at that crucial point.

Counsel for the appellant also contends that the request
by Black, admi.ted by the state, to confer with attorney
Davis made after the incarceration beginning February 11th
commenced, was sufficient to negate any apparent subsequent
waiver. We do not agree.

After his request at the second questioning on February
11, 1974, Black was given the opportunity to call his lawyer.
Black's action, in subsequently deciding to answer the police
officer's questioning after still another Miranda warning
repeating his right ot counsel, constituted affirmative action
by Black, which under the circumstances, we equate with waiver
of the right to counsel. See //.S. v. Coleman, 322 Fed. Sup.

550; Rouse v. State, 265 Ind. 670.

«98-

25a

Finally, in connection with the written confession
taken on February 13, 1974, it is apparent that Black
executed an express waiver of his Miranda rights by the
manner in which he signed the waiver card and initialed
the same and then proceeded with the execution of the
confession and signed the same with both confessions con-
taining an express waiver of his Miranda rights.

In conclusion, we find that the trial court's con-
clusion that the Miranda rule was complied with is fully
supported by our review of the record.

THE ISSUE OF VOLUNTARINESS

It is fundamental that a challenge to the
admissibility of a confession on the claim that was given
under circumstances that render it involuntary must be
resolved by the trial judge. See /uckszon v. Denno,

11 Law Ed. 2d. 871, 376 U.S. 503; State v. Perry, 14 Ohio
St. 2d. 256; State v. Wigglesworth, 18 Ohio St. 2d. 171.
Frequently such a challenge is determined by the
trial court only after he determines whom to believe when
the testimony is contradictory. Contradictory testimony was
offered on the subject of whether Black was fed following
his February llth incarceration and through the time of the

February 13th written confessions. Denial of food for a

o21-

26a

protected period would obviously render a confession
involuntary. But the state offered testimony to rebut
this claim and it supports the trial court's finding of
voluntariness, assuming as we must, that the trial court
believed the testimony offered by the state.

We find no authority for the proposition that the
denial of the change of clothing is of such magnitude as
to render a confession involuntary.

The defendant's claim that he had only eight hours
of sleep on the evenings of February 11 and 12, was counter-
balanced by the testimony of the officers that Black looked
normal during the questioning. Lt. Hriesk's testimony
indicated that Black's father, sister, girlfriend and
Reverend Griffiths each saw the defendant shortly after he
signed the February 13th damaging statement. However, no
testimony was offered by any of those four persons to support
Black's allegation of exhaustion due to the lack of sleep.
The trial court's rejection of the loss of sleep claim on
the issue of voluntariness, is supported by the record.

Remaining however, is the question of whether the
admitted repeated questioning of Black which led to the first
oral admissions and subsequently the written confession,

demonstrates, as a matter of law, an involuntary confession.

-22-

27a

Persistent questioning can, under certain circumstances,
render a confession involuntary. See (u/ombe v. Connecticut,
367 U.S. 568, 6 LL. Ed. td. 10387. However, we do not find

the questioning sessions conceded by the state to have

taken place to be of such a nature and number as to rule

the subsequent oral admissions and written confessions
involuntary. Further, the chronological analysis of the
various interrogation sessions and confrontations with

Jimmie Eatmon presents persuasive evidence for the proposi-
tion that the oral admissions and subsequent written con-
fessions were prompted, not by repeated questioning leading

to a destruction of Black's will and control, but by the

first Eatmon confrontation. The defendant had steadfastly
denied any involvement or knowledge of both slayings on the
22nd of January, the 28th of January and during the two
sessions on the llth of February and the first question session
on the morning of the 12th of February. It was only after the
first Black-Eatmon confrontation in which Eatmon indicated to
Black, notwithstanding their friendship, that he was co-opera-
ting with the police and would testify, that the defendant
made his first oral admissions. Those admissions followed

promptly on the heels of the confrontation and induced an

-23-

28a

incrimination by Black of Eatmon. That proposition is
further supported by the nature of the second confrontation
shortly after the first admissions were made by Black when
Black further attempted to incriminate Eatmon as a guilty
co-varticipant in the two crimes.

In cc clusion, we find that the evidence presented at
the lengthly suppression hearing supports the trial court's
conclusion that Black's oral admissions and written con-
fessions were the product of Black's free choice and thus
voluntary and admissible. The i3th assignment of error is
overruled.

Il.

THE CONSTITUTIONAL CHALLENGE TO THE OHIO DEATH PENALTY

In 1972, the United States Supreme Court in Furman v.
Georgia, 408 U.S. 288, by a five to four vote, reversed three
convictions holding that the death penalty, as applied,
constituted cruel and unusual punishment. Each of the nine
justices wrote an opinion explaining his position and vote.
Two of the five majority justices, Justice Stewart and Justice
White indicated that more precise legislative pronouncements
on the application and use of the death penalty freeing the
imposition of the penalty from a totally discretionary appli-
cation as existed in the cases cdlecided by Furman, supra,
would not run contrary to the cruel and unusual punishment
restriction imposed by the eighth amendment to the United States

Constitution.

o26-
29a

The Ohio Legislature then enacted a new death penai-v
providing for a mandatory death penalty for seven types of
aggravated murder, subject only to a subsequent judicial
finding of a legislatively specified mitigating circumstance.

For the penalty to be death in Ohio, the trier of fact,
be it a jury or a panel of judges, must find proof of the
allegation of aggravated murder beyond a reasonable doubt and
in addition the jury must separately find that one or more
alleged specifications to have been proven beyond a reasonable
doubt. Stated otherwise, the mere allegation that the
defendant committed aggravated murder without an attending
allegation of an aggravating circumstance does not constitute
an indictment charging capital murder. It is only where the
indictment separately alleges an aggravated circumstance that
the potential penalty is death. Where the jury returns a
verdict of aggravated murder, and also finds, as alleged in
the indictment, proof of an aggravating circumstance as is
the case here, then the responsibility for proceeding with the
case shifts to the trial judge or in the case of a trial to
three judges, to the three judges. The trial judge is then
required to conduct a post conviction hearing at which time
the court receives reports and hears evidence to determine

whether or not the proof of any one of the three specified

-25-

30a

mitigating civeumstaness™ is established bv a preponder-
ance of evidence. The legislature has directed the trial
court that if he finds proof of any one of the three miti-
gating circumstances, then it is his obligation, notwith-
standing the conviction and the jury determination that an
aggravating circumstance applied to the homicide, to impose
upon the defendant a punishment of life imprisonment. On
the other hand, if the court finds a failure to prove any
one of the three mitigating circumstances, then the legis-
lature has imposed upon the trial court the mandatory duty

of sentencing the defendant to death.

(B) Regardless of whether one or more of the agravating
circumstances listed in division (A) of this section is
specified in the indictment and proved beyond a reasonable
doubt, the death penalty for aggravated murder is precluded
when, considering the nature and circumstances of the offense
and the history, character, and condition of the offender, one
or more of the following is established by a prepondence (pre-
vponderance) of the evidence:

(1) The victim of the offense induced or facilitated it.

(2) It is unlikely that the offense would have been committed,

but forthe fact that the offender was under duress, coercion,
or strong vrovocation.

(3) The offense was primarily the product of the offender's
psychosis or men'al deficiency, though such condition is
sufficient. to establish the defense of insanity."

3la

in analyzing che Lepislactiorn actomted cre hrc bee es tert
restore capital punishment in the aftermath ot cner a
supra, we first conclude that the tabric and design of the
Ohio capital punishment provisions strictly limits the situ-
ations where capital punishment is a potential sentence by
adding the aggravating circumstance factor. The legislature
has further restricted the imnosition of capital punishment
to only those instances where a mitigating circumstance is not
proven in the subsequent judicial proceeding conducted in the
absence of the inhibitions previously imvosed in Ohio in capital
cases by the simultaneous guilt-punishment determination. We
find that the imposition of the death penalty pursuant to the
Ohio legislative mandate does not constitute cruel and unusual

punishment.

We further find that the Ohio legislation meets the objectim
raised to previous capital punishment legislation by Justices
White and Stewart of the United States Supreme Court. Assuming
no change in the judicial philosophy of Justices White, Stewart,
Burger, Powell, Rehnquist, and Blackmun, all members of the
present United States Supreme Court, we find that the recent
Ohio legislation enacting the death penalty to be constitutional
in the context of the previously announced opinions of the major-
ity of the members of the present United States Supreme Court.
Thus the assignments of error numbers eleven and twelve, alleging
the unconstitutionality of the capital punishment provisions in
the Ohio legislation are overruled.

II1.

THE CHALLENGED SENTENCING STATUTE, R.C. 2929.04(B) (3).

The tenth assignment of error claims that the third

-?7-
32a

“itis stape cirecets*ance, avattable upen proof te the detendant
to avoid the death penalty. is vayue and ambiguous. We tind
no such vaguness and ambiguity. The fact that under normal
circumstances it would be difficult for an offender to prove
that his act of killing another human being was primarily the
product of his own psychosis or mental deficiency does not
result in a "vague and ambiguous" declaration. -The tenth
assignment of error is overruled.

IV.

CONDUCT OF THE MITIGATION HEARING.

Following the jury conviction in May, 1974, the trial
court ordered’ a pre-sentence investigation and a psychiatric
examination pursuant to R.C. 2929.03(D). On July 8, 1974, the
post-trial pre-sentence mitigation hearing mandated by R.C.
2929.03(D) was held. The trial court advised counsel that
the appointed psychiatrist Dr. Massie and the psychologist
who had assisted the psychiatrist were available for "“cross-
examination". The defense counsel advised the court that he
had received, reviewed and studied the pre-sentence report and
also received, reviewed and studied the report of Dr. Massie,
the psychiatrist, as to the examination of the defendant. Defense
counsel indicated that he wished to have each of the doctors
available so that he might examine them under oath. Then a
brief discussion took place between the court and counsel as to
the procedure to follow at the mitigation hearing. After the
court expressed his views, counsel for the defendant stated

that he was “in accord with the court's stated position, that

~28-

33a

is as of Status quo at this momen: that the death

penalty would be imposed and the burden to go further

would fall upon the defendant". Having so stated, the
counsel for the defendant indicated that he wished to
examine first the psychiatrist and second the psychologist
and then make a judgment whether to produce evidence. With
that Dr. Massie, the psychiatrist, was called to the stand
and was questioned extensively by the counsel for the
defendant. Then the prosecutor cross-examined the doctor.
At the conclusion of Dr. Massie's testimony, defense counsel
indicated that it was no longer necessary to call the
psychologist because Dr. Massie had produced and explained
the report of the psychologist.

The defendant was given the opportunity to testify
either under oath or to make a statement not under oath and
he declined. No further evidence was offered or presented.
The court then made the finding that none of the three miti-
gating circumstances had been established by a preponderance
of the evidence.

The testimony offered by Dr. Massie including the
psychologist's reports indicated that Dr. Massie had inter-
viewed the defendant on three occasions and had taken his
history and had examined him rather closely as to his back-
ground. The Dsychologist's report stated that the testing

results indicated that the defendant was borderline mentally

o29-

BEST COPY el

deficient. The psychiatrist, despite the urging of the defense
counsel, did not state that the defendant's conduct was
primarily the product of mental deficiency or psychosis in
the context of the third mitigating circumstance. The
psychiatrist did testify that he would agree that the mental
deficiency of the offender was a factor in the offense.

The appellant assigns six separate assignments of
error challenging the conduct of the mitigating hearing.
First, by assignment of error number three, the appellant
claims that the trial court should have conducted the question-
ing of the psychiatrist. In support of this contention, the
appellant has attached a transcript of the mitigation hearing
conducted by the Hon. George J. McMonagle, the Cuyahoga County
Common Pleas Court in State of Ohio v. Davis, Cuyahoga Case
No. CR 13356, where Judge McMonagle conducted the questioning
of the psychiatrist and then provided the opportunity to
counsel for the state and the defendant to cross-examine. We
do not consider whether Judge McMonagle's method of handling
the mitigation hearing was according to law, but we do find
that the manner by which Judge Larson proceeded was in accordance
with law. We find no requirement in the statute that the
trial court in the mitigation hearing has the primary duty to
question the witnesses who appear on the issue of whether or not

a mitigating circumstance exists.

oe

35a

We hold the contention that the mandatory oblipation
of the trial court to hold the mitigation hearing should
be construed as requiring the trial court to initiate the
questioning process of the psychiatrist to be without merit.

The fourth assignment of error centers on the following
question and answer in Dr. Massie's testimony:

"Q. Were you able to form an opinion as to
whether his involvement, whatever it may
be, was primarily the product of such mental
deficiency?

A. No. sir. I was not able to.”

Appellant contends that more questioning should have
followed to determine why the psychiatrist was "not able to".
We disagree. We construe the psychiatrist's answer to the
question to be simply that he was not prepared to nor would
he testify that the offender's action was "primarily" the
product of the mental deficiency.

The fifth assignment of error claims that the psychiatrist
should have had available to him the pre-sentence report required
by R.C. 2929.03(D). We find no such requirement nor do we
find any error in the psychiatrist not having the pre-sentence
report. The psychiatrist testified that he carefully examined
the appellant to determine his background, history and nature.

The sixth assignment of error claims that the psychiatrist

paid no heed to the history, character, and condition of the

defendant. We find no support for such allegation having

- -

36a

reviewed the psychiatrist's testimony.

The seventh assignment of error claims that the court
erred in not calling the psychologist to the stand. The
psychologist was called upon bv the psychiatrist to aid
him in his report. The report of the psychologist was
throughly explained by the psychiatrist and not challenged
and was apparently acceptable. We find no error in the court
not insisting upon the psychologist being called to the
stand. Counsel for the defendant specifically indicated
that he no longer believed it necessary to call the psychologist
to the stand. To now challenge the failure of the psychologist
to be called to the stand as an error on the vart of the court
is not well taken.

The ninth assignment of error claims that the court
failed to take into consideration the first and second miti-
geting circumstances in deciding that no mitigating circum-
stances had been established. We find no such error. The
trial court heard testimony presented to the jury. None of
the testimony presented to the jury remotely suggested that
either the first or second mitigating circumstances had been
obtained. The defendant offered no testimony to suggest either
the first or second mitigating circumstance obtained. The
evidence vresented was designed to come within the third
mitigating circumstance. Finally, the court did make an
express finding that none of the three mitigating circumstances

had been established as to either of the two homicides.

-32-
37a

For the foregoing reasons, the third, fourth, fifth,

‘ sixth, seventh, and ninth assignments of error are overruled.

v.

THE CLAIM OF DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL.

The anpellant claims that his selected counsel
at the trial level denied him effective assistance of counsel.
We commence our review of this claim by noting that the
defendant's trial counsel, in addition to attending all hearings
and continually engaging in extensive cross-examinations, filed
the following motions and requests:
l. April 3, 1974, a demand for discovery;
2. April 3, 1974, a Criminal Rule D(2) request for
notice from the prosecuting attorney of his

intention to use specified evidence;

3. April 4, 1974, a request for a Bill of
Particulars with ten sections;

4. April 4, 1974, a motion for an order to establish
bail;

5. April 5, 1974, a motion to compel discovery;

6. April 19, 1974, a motion to suppress the statement
of the defendant;

ea poh 22, 1974, a notice of intention to seek a
change of venue;

8. April 22, 1974, a notice of alibi;

9. May 13, 1974, a motion for specific instructions
to the jury; and,

ofS

38a

lO. May 28, 1974, a motion for new tria) based
on ten 8Tounds.

Be A failure to Challenge the repecitutionality
of the Ohio death Penalty Statute;

2. His Performance at the mitigation hearin where
he failed to call a second P8ychiatrigt Or the
Purpose of eliciting a contrary opinion to the
one expressed by Dr. Massie:

3. — failure CO call the P8ychologist, Dr. Grafe;
and,

4. His drinking during the trial as demonstrated by
affidavits attached to “ppellant's brief and
signed by the 8ppellant's father and sister.

We disregard the affidavits concerning the issue of

drinking. Our review of the Claim of the denial Of ineffec-

tive counsel .ig limited to the record before us. The affidavits

Submitted in the 4ppellant's brief do not Constitute ¢@ Part

Of the Tecord before Us for our review.

39a

statute unconstitutional as it pertains to the death penalty,
it is extremely unlikely. The greater likelihood is that
the issue of the constitutionality of the new Ohio death
penalty statute will be resolved by The Ohio Supreme Court
or the United States Supreme Court. It is apparent from
the lengthy suppression hearing, for which the transcript of
proceedings numbers approximately 150 pages, that the
primary strategy of defendant's trial counsel was to attempt
to suppress the defendant's lengthy confessions and then
hope to free the defendant on the basis that the defendant's
girlfriend and other friends could not be believed as to the
defendant's oral admissions of guilt respecting the slayings
of Olga Ladderman and Robert Staples.

To argue that counsel for the defendant should have
centered his attention on the constitutionality of the Ohio
death penalty statUte, constitutes an exercise in second
guessing but fails to establish the denial of effective
assistance of counsel. If this court were to hold that
defendant, after selecting his own counsel, can gain a new
trial by demonstrating that his own selected counsel denied
him effective assistance of counsel by failing to attack the
constitutionality of the statute under which is is being tried,
then the state is powerless to proceed with effective prose-

cution.
oe

40a

Additionally, we find that the appellant's claim that
the trial counsel should have called a second psychiatrist
to testify and that the trial counsel should have called
the psychologist to testify, notwithstanding his determin-
ation as an advocate that Dr. Massie, the psychiatrist,
had produced and explained the test results of the psycholo-
gist, fails to establish a denial of the ineffective assistance
of counsel.

An adverse result to the defendant is not to be
equated with a denial of effective assis-ance of counsel.

In reviewing the allegations claiming a denial of effective
assistance of counsel, we conclude that the appellant has so
equated a conviction and death penalty. The first, second
and eighth assignments of error are overruled.

In conclusion we find from a review of this record, that
the defendant has been convicted of two robbery-killings
committed within hours of each other under circumstances which
indicate that he engaged in both advance planning and subse-
quent conduct designed to conceal his responsibility for those
teprehensible crimes. We find that the conviction and subsequent
sentence are consistent with the Ohio Laws which we find to be
constitutional and in comformance with due process. The judg-
ment and sentence of the Richland County Common Pleas Court of
Mansfield, Ohio, is affirmed.

Rutherford, P.J. and Putman, Sg

- 36-

4la

Note: Page 42 a through 45a of this Appendix were not
of reproducible quality. They are the Opinion
of the Court in Ohio v Black, 48 Ohio St.2d 262.

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OIIIO, 1g". TERM

City of Columbus. J

State of Ohio,
Appellee,

vs. \

Jesse Black,
Appellant.

It is ordered by the court that rehearing in this case is denied.

LTHOMAS L. STARTZMAN, Clerk of the Supreme Court of the State of Ohio,
do hereby certify that the foregoing entry was correctly copied from the records of

said Court, to wit, from Journal WNo...........Page..........
IN WITNESS WHEREOF, I have hereunto subscribed
my name and affixed the seal of the Supreme Court

Cees Be mn ,

Clerk.

— .... Deputy.
~,. 4298

THE STATE OF OIIO,
19.77.) TERM

City of Columbus.

State of Ohio, To TE. January 21, 197.
Appellee,
No....16=219
vs.
Jesse Black,
Appeliant. EN TR Y

( RICHLAND COUNT Y)

Upon consideration of the motion, filed by counsel for appellant, to stay
execution of sentence pending the timely filing of an appeal to the Supreme Court
of the United States, it is therefore

ORDERED that execution of sentence be, and the same hereby is, stayed,
pending the timely filing of an appeal to the Supreme Court of the United States.

It is further ORDERED that if a timely notice of appeal is filed to the Supreme
Court of the United States, this stay will automatically continue pending final determination
of the appeal by that Court.

It is further ORDERED that the Clerk of this Court shall forthwith send a

certified copy of this Stay of Execution to the Superintendent of the Southern Ohio
Correctional Facility, who shall acknowledge receipt thereof.

ae

CHIEF JUSTICE

I, THOMAS L. STARTZMAN, Clerk of the Supreme Court of the State of Ohio,
do hereby certify that the foregoing entry was correctly copied from the records of
said Court, to wit, from Journal No........... ——

IN WITNESS WIHEREOF, I have hereunto subscribed

my name and affixed the seal of the Supreme Court

this.2\st_ day of........January >) Rie

THOMAS L. STARTZMAN _

By Deputy.
04 378

’ 47a

OHIO STATUTORY PROVISION

vw

(1) Ohio Revised Code, Section 2903.01 Aggravated Murder.

(A) No person shall purposely, and with prior
calculation and design, cause the death o
another.
(b) No person shall purposely cause the death
of another while committ or attempting to
commit, or while fleeing immediately after com-
mitting or attempting to commit kidnapping, rape,
aggravated arson or arson, aggravated robbery or
bery, aggravated burglary or burglary, or
escape.
(Cc) "Gheoves violates this section is guilty of
aggravated murder, and shall be punished as
provided in section 2929.02 of the Revised Code.

(2) Ohio Revised Code, Section 2903.02 Murder.

(A) Wo person shall purposely cause the death
of another.

(B) Whoever violates this section is guilty of
murder, and shall be punished as provided in sec-
tion 2529.02 of the Revised Code.

(3) Ohio Revised Code, Section 2903.03 Voluntary Man-
slaughter.

(A) No person, while under extreme emotional
stress br t on by serious provocation reason-
ably sufficient to incite him into using deadly
force, shall knowingly cause the death of
another.
(B) Whoever vioaltes this section is guilty of
yond manslaughter, a felony of the first
gree.

(4) Ohio Revised Code, Section 2903.04 Involuntary
Manslaughter.

(A) No person shall cause the death of another
as a proximate result of the offender's committing
Or attempting to commit a felony.
(B) Wo person shall cause the death of another
as a proximate result of the offender's committing
Or attempting to commit ea misdemeanor.
(C) Whoever violates this section is wnt of
involuntary manslaughter. Violation of division
A) of this section is a felony of the first

ree. Violation of division (B) of this section
is a felony of the third degree.

(5) Ohio Revised Code, Section 2923.03 Complicity.

(A) No person, act with the kind of culpa-
bility required for the commission of an offense,
shall do any of the following:
(1) Solicit or procure another to commit the
offense;

48a

(2) Aid or abet another in committing the
offense;

(3) Conspire with another to commit the offense
a. on of section 2923.01 of the Revised
Code;

(4) Cause an innocent or irresponsible person
to commit the offense.

(B) It is no defense to a charge under this
sect/on that no person with whom the accused was
in complicity has been convicted as a principal
offender.

(C) Wo person shall be convicted of ceuphtet oy
under this section unless an offense is actually
committed, but a person may be convicted 6f
compiicity in an attempt to commit an offense in
violation of section 2923.02 of the Revised

Code.
(D) No person shall be convicted of complicity
under this section solely the testimony of

an accomplice, unsupported by other evidence.
©) It is an affirmative defense to a charge un-
r this section that, prior to the commission of
or attempt to commit the offense, the actor termi-
nated his complicity, under circumstances mani~
festing a complete and voluntary renunciation of
his criminal se.
(F) Whoever violates this section is guilty of
se in the commission of an offense, and
shall be prosecuted and ished as if he were a
principal offender. A charge of complicity may be
stated in terms of this section, or in terms of
the principal offense.

(6) Ohio Revised Code, Section 2929.02 Penalties for
murder.

(A) Whoever is convicted of ene murder in
violation of section 2903.01 of the Revised Code
shall suffer death or be imprisoned for life,

as determined pursuant to sections 2929.03 and
2929.04 of the Revised Code. In addition, the
offender may be fined an amount fixed by the court,
but not more than twenty-five thousand dollars.

(B) Whoever is convicted of or pleads guilty to
murder in violation of section 2903.02 of the
Revised Code shall be imprisoned for an indefinite
term of fifteen years to life. In addition, the
offender may be fined an amount fixed by the court,
but not more than fifteen thousand dollars.

(C) The court shall not impose a fine in addition
to imprisonment or death for aggravated murder, or
in addition to imprisonment for murder, unless the
offense was committed with purpose to establish,
maintain, or facilitate an activity of, a criminal
syndicate as defined in section 2 3.04 of the
Revised Code, or was committed for hire or for
purpose of gain.

D) The court shall not impose a fine or fines

or aggravated murder or murder which, in the ag-
gregate and to the extent not by the
court, exceeds the amount which offender is or
will be able to pay by the method and within the time
allowed without undue hardship to himself or his

49a

dependents, or will prevent him from making
reparation for the victim's wrongful death.

(7) Ohio Revised Code, Section 2929.03 Imposing Sentence for
A Capital Offense.

(A) If the indictment or count in the indictment
charging aggravated murder contains no specifica-
tion of an aggravating circumstance listed in divi-
sion (A) of section 2929.04 of the Revised Code,
then, following a verdict of guilty of the charge,
the trial court shall impose*sentence of life

at if'ce on the offender.

(B) If the indictment or count in the indictment
Gongs ravated murder contains one er more
specifications of ye circumstances listed
in division (A) of section 2929.04 of the Revised
Code, the verdict shall separately state whether
the accused is found guilty or not guilty of the
principal charge and, if guilty of the principal
charge, whether the offender at ay = or not
uilty of each specification. jury shall be
nstructed on its duties in this regard, which
shall include an instruction that a specification
must be proved beyond a reasonable doubt in order
to support a guilty verdict on such specification,
but such instruction shall not mention the

penalty which may be the consequence of a guilty
or not guilty verdict on any charge or specification.
(C) If the indictment or count in the indictment
charging ravated murder contains one or more
specifications of aggravat circumstances listed
in division (A) of section 2929.04 of the Revised
Code, then, following a verdict of guilty of the
charge but not ontty of each of the specifications,
the trial court shall impose sentence of life
imprisonment on the offender. If the indictment
contains one or more specifications listed in
division (A) of such section, then, following a
verdict of guilty of both the charge and one or
more of the specifications, the penalty to be
imposed on the offender shall be determined:
(1) By the panel of three judges which tried
the offender upon his waiver of the right to trial

by jury;
) A A. trial judge, if the offender was

trie ury.

0) When death may be imposed as a prey

or aggravated murder, the court shall require a
pre-sentence yy and a psychiatric
examination to be made, and reports submitted to
the court, pursuant to section 2947.06 of the
Revised Code. Copies of the reports shall be
furnished to the prosecutor and to the offender
or his counsel. The court shall hear testimony
and other evidence, the statement, if any, of
the offender, and the arguments, if any, of
counsel for the defense and prosecution, relevant
to the penalty which should imposed on the
offender. If the offender chooses to meke a
statement, he is subject to cross-examination
only if he consents to make such statement
under oath or affirmation.

50a

(8)

(EZ) Upon consideration of the reports, testi-
mony, other evidence, statement of the offender,
and arguments of counsel submitted to the court
pursuant to division (D) of this section, if the
court finds, or if the panel of three } es
unanimously finds that none of the mit —
circumstances listed in division (B) of section
2929.04 of the Revised Code is established by «a
preponderance of the evidence, it shall impose
sentence of death on the offender. =
shall impose sentence of death

Ohio Revised Code, Section 2929.04 Criteria for
Imposing Death or Imprisonment for a Capital Offense.

(A) Imposition of the death penalty for aggravated
murder is precluded, unless one or more of the
following is specified in the indictment or count
in the indictment pursuant to section 2941.14 of
the Revised Code, and is proved beyond a reason-
able doubt:

(1) The offense was the assassination of the
president of the United States or person in line
of succession to the presidency, or of the governor
or lieutenant governor of this state, or of the
president-elect or vice president-elect of the
United States, or of the governor-elect or
lieutenant governor-elect of this state, or of a
candidate for any of the foregoing offices. For
ir ses of this division, a person is a candidate

f he has been nominated for election accord
to law, or if he has filed a petition or petitions
according to law to have his name placed on the
ballot in a primary or general election, or if
he campaigns as a write-in candidate in a
primary or general election.

iF The offense was committed for hire.

3) The offense was committed for the purpose
of escaping detection, apprehension, trial, or
punishment for another offense committed by the
offender.

4) The offense was committed while the
offender was a prisoner in a detention facility
o Sema in section 2921.01 of the Revised
(5) The offender has previously been convicted
of an offense of which gist was the purpose-
ful killing of or attempt to kill another, commit-
ted prior to the offense at bar, or the of fense
at bar was part of a course of conduct involving
the purposeful killing of or attempt to kill two
or more persons by the offender.

6) e victim of the offense was a law
enforcement officer whom the offender knew to be
such, and either tie victim was engaged in his
duties at the time of the offense, or it was the
offender's specific purpose to kill a law enforce-
ment officer.

(7) The offense was committed while the of-
fender was committing, attempting to commit, or
fleeing immediately after committing or attempting
to commit kidnapping, rape, aggravated arson,
-— robbery, or aggravated burglary.

(B) RBegardless of whether one or more of the
aqpeoveting circumstances listed in division (A)

of this section is specified in the indictment and
proved beyond a reasonable doubt, the death

5la

penalty for aggravated murder is precluded
when, considering the nature and circumstances
of the offense and the history, character,

and condition of the offender, one or more

of the following is established r, ”
preponderance of the evidence: (1) The
victim of the offense induced or facilitated
és.

(2) It is unlikely that the offense would
have been committed, but for the fact that the
offender was under duress, coercion, or

strong provocation.

(3) The offense was primarily the product

of the offender's psychosis or mental
deficiency, though such condition is
insufficient to establish the defense of
insanity.

ee ee ee ee ee ee ae) ee

52a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2120%3A1. Public record. Not legal advice.